POSTMODERNITY: DECADENCE OR RESISTANCE
JESUS BALLESTEROS
PAMPLONA, UNIVERSIDAD DE NAVARRA, 1992, 200 PAGS.
12. POSTMODERNITY AND ECOLOGY : INTEGRAL
THOUGHT AND LOCAL ACTION
As opposed to what occurs with non-violent, ecumenical and neo-feminist thought, we can fix the precise date
of the apparition of the new mode of ecological thinking.
Indeed, its first public manifestation of a universal nature
took place during the United Nations Conference on the
Environment held in Stockholm between 5-12 June, 1972.
The atmosphere that made the Stockholm Conference
possible had been prepared by the awareness of the disasters
brought about by the Atom Bombs dropped by the United
States over Japan, as well as by growing environmental pollution due to the use or abuse of toxic products, especially in
the Vietnam War but also for private uses (fertilizers,
pesticides). Along with this came a greater awareness of the
increasing seriousness of undernourishment in the world as
alarming reports were published yearly by the Food and
Agriculture Organization (FAO), which stressed the existing
lack of proportionality in the sharing of the wealth of the
Earth, as well as a greater awareness of the abuses of the
countries of the Northern Hemisphere in the sphere of
international trade.
What was being questioned was the credibility of the
science of economics as such, since it was proving itself
incapable of seriously tackling topics which were apparently
only economic, such as that of the conservation of natural
resources and their adequate distribution. In 1971 there
appeared the fundamental work of Nicholas GeorgescuRoetgen, La ley de la entropía y el proceso económico 1, in
which the thesis of the infinity of resources was denied. Some
months earlier, concretely in March, the Meadows Report
from M.I.T. on The Limits to Growth, elaborated for the Club
of Rome2, had come to this same conclusion of the insufficiency and inadequacy of the economy to confront the
1
Nicholas GEORGESCU-ROETGEN, Demain la décroissance, French
translation by Ivo Reins and Jacques Gribevald, Favre, Paris, 1979.
2 MEADOWS REPORT, Los límites del crecimiento, Spanish translation
by María Soledad de Grana, FCE, Mexico, 1982.
problems created by the technological revolution. The Club
of Rome had been founded six years before by the Italian
entrepreneur and humanist Aurelio Peccei with the aim of
analyzing the problems of the day from an interdisciplinary
perspective. The quoted Report made it clear that the
secondary or derived problems created by the technological
revolution, such as unemployment, contamination or arms
proliferation, could not be solved technically, but rather only
by means of "a change in human mentality"3. Along with this
important stance against economicism, the Report presented
questionable aspects related to its neo-Malthusianism,
motivated by the belief that world population had grown
beyond reasonable limits, whereas resources are not able to
grow at this same rate. Peccei himself, in his 1977 book
Human Quality 4, declared that the Modern Age had eclipsed,
in so far as it is the age of homo oeconomicus, and that there
was need for the apparition of a "new humanism" based on
ecology and solidarity. The neo-Malthusianism of the earlier
reports tended to become reduced in the later reports to the
Club of Rome, in favor of greater emphasis being placed on
the distribution of resources.
The Stockholm Conference to which we have alluded
drew up a Declaration on the Environment whose two first
principles refer, respectively, to the right to a quality of living
and to the need for conserving the resources of the Earth for
future generations. In the declaration of motives it is stated
that "millions of people are still living well under the
minimum levels required for a dignified life by being
deprived of adequate food, clothing, shelter, education, health
and hygiene [in spite of the fact that] of all the things in the
world, human beings are the most valuable. Humans are those
who promote social progress, who create social wealth and
who develop science and technology"5.
From this it followed that the modern approach to the
economy was wrong in view of its omission of the following:
1) That the individual is the end of the economy in all
its suppositions and furthermore the individual is the
most valuable being in his or her extraordinary variety
of cultures and personalities;
3
MEADOWS REPORT, Los límites del crecimiento, cit., page 189.
Aurelio PECCEI, La calidad humana, Spanish translation by Joaquín
Antuño, Taurus, Madrid, 1977.
5 UNITED NATIONS DECLARATION ON THE ENVIRONMENT, Stockholm,
5-12 June, 1972. Conference 48, in Textos normativos de Derecho
Internacional Público, compilation and notes by Nicola Torres Ugene,
Crítica, Madrid, 1985, pages 455-460.
4
2) That resources are limited as a consequence of
having forgotten the law of entropy, entailing their irrational wastage;
3) That resources tend towards concentration in
agreement with the logic of vested interest as the supreme criterion, and this leads to the avoidance of their
just distribution.
The author who best perceived the change of paradigm
that had to become introduced in the science of economics
starting from these principles, and who best reflected upon
these, was the German-born and later British national as a
consequence of his opposition to Nazism, Erich Fritz
Schumacher (1911-1977), whose religious trajectory went
from atheism to Buddhism and from there to Catholicism. His
most famous book, Small is Beautiful, published the year
after the Stockholm Conference, has a significant subtitle
bearing on "the economy as though people were taken into
account"6. Initially this book was not well interpreted; it did
not have the aim of exalting smallness as such, but rather the
right size. If smallness was stressed, it was as a counterpoint
to the technocratic gigantism of both East and West. But later
on, above all after the publication of his posthumous book A
Guide for the Perplexed 7 in 1977, the influence of his
thought became remarkable, especially in authors as decisive
for the critique of the modern model of society such as the
futurologist Hazel Henderson, authoress of an important book
The Politics of the Solar Age, whose subtitle is also significant: Alternatives to the Economy 8, or the physicist and
philosopher Frijhof Capra, especially in his book The Crucial
Point 9.
What is most fascinating about Schumacher's contribution lies in the courage with which he confronts economists, who consider the extension of the market to be a
panacea for all evils, whereas Schumacher stresses that the
market itself is the source of the basic insufficiencies of
Modernity: "The market only represents the surface of society
and its meaning refers to a momentaneous situation, such as it
exists here and now. There is no deep delving in the essence
of things nor in the natural facts that lie behind them. In a
6
Fritz SCHUMACHER, Lo pequeño es hermoso, cit.
Fritz SCHUMACHER, Guía para los perplejos, Spanish translation by
Guillermo Sanz-Calleja, Debate, Madrid, 1981. In 1977, after
Schumacher's death, the Schumacher Society was founded; its official
organ is the journal Resurgence .
8 Hazel HENDERSON, La política de la Edad Solar. Alternativas a la
economía, cit., passim.
9 Frijhof CAPRA, El punto crucial, cit.
7
certain sense, the market is the institutionalization of
individualism and of irresponsibility"10.
The greatest limitation of the market, according to
Schumacher, lies in its eradication of the qualitative, and this
provokes important consequences in the use of resources and
in the comprehension of human affairs. "In the market, for
practical reasons, there is the suppression of innumerable
qualitative distinctions which are of vital importance for
individuals and society and which are not allowed to come to
the surface. Thus does the reign of quantity celebrate its
triumph in the Market. There everything is made equal to the
rest. To make things equal means to give them a price and to
make them interchangeable. To such a point is modern
thought based upon the market that what is sacred (the
person) is eliminated from life because there can be nothing
sacred in something that has a price"11.
The primacy of the market therefore introduces a
twofold and dangerous avoidance of differentiation. In the
first place, between types of resources, singularly the existence between renewable and non-renewable resources, and
second, between the costs of growth, since the Gross National
Product does not take into account, as it should, energy losses, whether environmental (desertification, reduction of the
ozone layer due to aerosols, the disappearance of nonrenewable fossil fuels) or human (increased delinquency,
cancer, famine …)12.
Against this, Schumacher proposes, on the one hand,
the adoption of alternative or soft technologies that do not
consume non-renewable resources. From this stems his
special predilection for solar energy, which explains the title
of the book by his disciple Hazel Henderson. On the other
hand, intimately connected with this, there is the requirement
of a way of coming closer to the world which is completely
antagonistic vis-à-vis the consumption model, in which the
dimension of the respecting care of things —animals, plants,
land, energy— is given primacy, as is the primordial attention
granted to the conservation of resources whilst thinking of
our future generations. "The primordial concept of wisdom is
permanence: we must study the economics of permanence.
Nothing has economic meaning unless its long-term
10
Fritz SCHUMACHER, Lo pequeño es hermoso, cit., page 45.
Fritz SCHUMACHER, Lo pequeño es hermoso, cit., page 46.
12 In Spain, the two economists who manifest a greater ecological
sensibility and a greater awareness of the crisis of the market are José Luis
Sampedro and Ramón Tamames.
11
continuity can be projected without falling in absurdities"13.
The requirement of caring for nature and for the conservation
of resources therefore lead to the recuperation of sobriety,
which according to Schumacher is "the most necessary of the
cardinal virtues at this moment: the possibility of mitigating
the exhaustion of resources and of attaining harmony in the
relationships between those who own wealth and power and
those who do not is nonexistent as long as there does not
exist, in some place, the idea that sufficient is good and more
than sufficient is bad"14.
The requirement of sobriety as the central message of
ecological thought entails, in our opinion, very profound
implications of a practical nature, as well as a manner of
considering human beings which leads us to wholly
overcoming the modern conception in its individualistic and
voluntarist aspects.
As far as practical problems are concerned, there is an
increasing number of studies that consider that the spread of
unemployment in the world is jointly due to technological
development and to the lack of solidarity. For this reason they
propose the reduction of the working day as the sole remedy
against unemployment. It is therefore a matter of inverting the
basic tendency of the modern homo oeconomicus by
radically denying that the distribution of resources can reach
everybody by solely following the "laws of the market". An
effort in solidarity is required in order to be able to distribute
the hours of the working day so that we can attain, at the
same time, the unification of humans, now split between
being either producers or salespersons.
This is precisely the deepest message of the ecological
mode of thinking: the recuperation of man's lost unity with
other men, with nature, with oneself and with God. This is
what we will presently deal with.
The awareness of the existence of non-renewable resources must lead us to the awareness of the inalienable, of
what cannot be sold, of what cannot be disposed of. "The
resources of the Earth can not be expropriated by any
generation under any pretext. Earth, water, air, all that grows
in the seas and in the soil and all that is found on the surface
of the planet is a common patrimony of all peoples and of all
13
Fritz SCHUMACHER, Lo pequeño es hermoso, cit., page 33. On the
topic of time in genuine postmodernity, see Jacques-Jean AUSTRUY,
"Temps et développement", in VARIOUS AUTHORS, Le droit et le futur,
Presses Universitaires de France, Paris, 1985, page 111 and following.
14 Fritz SCHUMACHER, Lo pequeño es hermoso, cit., page 307.
generations", writes Erwin Laszlo in his book for the Club of
Rome, The Last Chance 15.
The ultimate foundation of the ecological approach is
its opposition to the voluntarism that becomes concretized in
Cartesian dualism: in the opposition between the individual
will as a subject and the rest of reality reduced to being a
mere object capable of being manipulated at the mercy of that
will and therefore entirely alienable.
Postmodernity in its ecological slant stresses the limits
of trade and therefore also the capacity to dispose of things.
What people had thought during Modernity to belong to
them (water, air, ozone, or —at another level— our own
bodies) is contemplated by ecological thinking to be a part of
our being, and therefore all this cannot be disposed of. The
legal repercussions of this approach will be analyzed in the
following chapter.
It is true that here also (the same as with non-violence,
ecumenism and neo-feminism) not all the possible coherent
conclusions have been reached by the authors dealing with
this subject. The same as with the biologistic shortcomings of
certain forms of pacifism or the individualistic and relativistic
shortcomings of certain forms of feminism, sobriety has at
times been considered as a requirement only with regard to
relationships with nature but not with regard to others and to
oneself. This is what occurs with certain forms of ecologism
which are unable to entirely break away from voluntarism and
which absurdly defend the inalienable rights of natural
resources, but not those of human life, by defending abortion.
The grandeur of Schumacher and his followers lies in not having fallen into such contradictions. The recuperation of the
inalienable leads to the recuperation of the sacred and of the
religious. "The term ¨return to the home¨ naturally has a
religious connotation, because it requires a great dose of
courage to say ¨no¨ to the fashions and fascinations of the
epoch and to question the principles of a civilization which
seems destined to dominate the world"16. In an analogical
manner, Skolimowski, in his book Ecophilosophy 17, manifests the same thing by underlining that the foundation of
ecological philosophy is man's non-repeatable and sacred
nature. Schumacher places a condition to the clarity in the
perception of goals in the postmodern era with this warning:
15
Erwin LASZLO, La última oportunidad, Spanish translation by Iris
Menéndez, Debate, Madrid, 1985, page 161.
16 Fritz SCHUMACHER, Lo pequeño es hermoso, cit., page 163.
17 Henryck SKOLIMOWSKI, "Reexaminando el movimiento ecologista", in VARIOUS AUTHORS, Ecofilosofías, Cuadernos de Integral,
Barcelona, 1984, page 55 and following.
"The modern experience of living without religion has been a
failure and once we have understood this we will know what
our postmodern goals will be"18.
18
Fritz SCHUMACHER, Guía para los perplejos, cit., page 198. See
also Jonathan PORRIT, "Let the Green Spirit Live", Schumacher Lecture in
Resurgence, no. 127 (March-April 1988), pages 5-12, and José PÉREZ
ADÁN, Revista de Trabajo, (1988), page 135 and following.
13. HUMAN RIGHTS AS INALIENABLE RIGHTS
Voluntarism and economicism, as dominant features of
the modernizing mentality, started off from the unconditional
acceptance of the principle volenti non fit injuria, and
therefore from the impossibility of the existence of attempts
or violence against oneself.
This anthropological near-sightedness downgraded the
meaning of the word "inalienable" used in some declarations
of rights, which was understood in the weak sense of
"inviolable" vis-à-vis others, but capable of being renounced
by the subject himself. This was especially clear in texts such
as the Declaration of the Good People of Virginia, in which
property is considered to be inalienable, along with life and
liberty. In effect, property in the modern sense is, as we have
seen, what is alienable and disposable above all things. When
we speak of the inalienability of property, the only thing that
is meant is that its free use and disposition on the part of
others should not be tampered with.
The United States Declaration of Independence,
Jefferson's doing, to this respect constitutes a novelty of
extraordinary interest since the replacement of "property" by
"the pursuit of happiness" allows us to understand the word
"inalienable" in its strong and rigorous sense. In effect, the
renunciation of happiness seems much more antinatural and
absurd than the disposition of property.
The inalienable nature of rights is precisely the specific
note of postmodern thinking, intimately derived from the
paradigm of the "quality of life". Indeed, now it is not so
much a matter of defending rights in the face of the State, as
in the case of the "freedom of the moderns" or the rights of
the first generation, but rather of defending them in the face
of the market and even in the face of the very individual will
of the subjects of those same rights.
The inalienable was hinted at in the Roman conception
of law when it referred to res extracommercium, among
which there was the inclusion of res communes and of res
sacrae. This intuition proves that the modern mentality is
much more strongly economicist and mercantile, as compared
to the Roman mentality, which in spite of everything
maintained a sense of limits to avoid hybris.
The admission of inalienable rights, even previous to
the market and on the part of their very title-bearer, implies a
conception of the person different from the liberal conception
of an isolated and self-sufficient monad, and from the late
modernist conception of a "playful mask". It forces the
understanding of the human person in agreement with its
originating terminology as prosopon, as a being open to
reality, as relationship with the Origin, with others, with
nature.
The relational dimension of the human individual —incompatible with methodological individualism, the supreme
ideology of today— leads precisely to the overcoming of
homunculism. Man stops considering himself as "something
insignificant", pure unsatisfied desire, from the moment in
which he opens up to others, from the moment in which he
experiments the fact that he is not sovereign but rather the
guardian and custodian of reality for his contemporaries and
for the future generations. This idea of the connection
between the inalienability and the grandeur of human beings
is what Kafka eloquently manifests in his conversations with
Janouch: "We live as if we were the sole masters. This
converts us into slaves"1.
This conception of the person based on solidarity is
understood by the majority of primitive peoples, which today
we pejoratively call "Third—worlders", who are aware of the
fact that the guarantee of the right to life, clothing and shelter
forces the common property of the land or at least it excludes
its unlimited disposition. This is what occurs, for example, in
the mentality of Africans, as Leopold Sedar Senghor reminds
us: "In black Africa there does not exist the right to
possession. There only exists the right to usage, usufructuary
property. The eminent dominion of the earth does not
correspond to man. Land is inalienable because one can not
estrange that which does not belong to him. Each person can
thus satisfy his or her needs of food, clothing and shelter, sine
qua non conditions of any type of spiritual development"2.
The same can be said of other peoples in which chrematistic
modernization does not dominate, in which there is the
tendency to stress the connection between rights and duties
and to underline the dependence of law with respect to the
satisfaction of fundamental needs3.
1
Gustavo JANOUCH, Conversaciones con Kafka, Fontanella,
Barcelona, 1961.
2 Leopold SEDAR SENGHOR: Libertad, negritud, humanismo, Spanish
translation by Julián Marcos, Tecnos, Madrid, 1970.
3 VARIOUS AUTHORS, Los fundamentos filosóficos de los derechos
humanos, cit. See also Prakash SINHA, "Human Rights: A Non-Western
Viewpoint", in A. R. S. P. (1981), pages 76-91.
In the Western World, this strong sense of the inalienable in relation to the usage of resources, which are
common, was understood by classical thought which reduced
the right to property to a "power of administration and
distribution" which was reiterated by authors such as Samuel
Taylor Coleridge (1772-1834), for whom "the life, health and
well-being of workers are inalienable"4. This led him to limit
laissez-faire and private property in favor of the most
deprived.
This inalienable character of human rights is what is to
be found beneath the apparition of the term —not too
fortunate as such, although opportune in its applications—
"moral rights", which is found, as is well known, in the work
of Coleridge's disciple, John Stuart Mill. In effect. this notion
requires the granting of primacy to the connection of rights
and duties over and beyond individualism, and it stresses the
sense of solidarity. In the fifth chapter of his book
Utilitarianism 5, Mill stresses that "the equal right of all to
happiness" —a clear Jeffersonian reference— implies the
equal right of everyone to the means that lead to happiness.
Hence:
1) The right to equal treatment.
2) The right to life as a basic right: "To save a life it is
not only licit, but rather it is a duty, to steal or to take by
force the food or medicine needed, or to kidnap the only
qualified doctor and to force him to intervene".
In spite of his liberalism, Mill —possibly due to
Coleridge's influence— well kept in mind the limits of the
autonomy of the will in favor of the least favored. He ends his
Principles of Political Economy 6 in the following manner:
"Regarding all that which is desirable for the general interest
of humanity and of the future generations, it is very
convenient that the Government should take care to stimulate
it and to remunerate it". Moreover, in chapter 4 of Mill's On
Liberty 7, he points out that "gambling, drunkenness,
incontinence, sloth and filth should be repressed by the law
4
Coleridge's sense of property is the one that later on appears in
another genuine postmodern, Gilbert Keith CHESTERTON, who writes with
his usual sharpness: "I defend the private property of those who haven't
got any", Autobiografía, Spanish translation by Antonio Marichalar, in
Obras completas, Plaza, Barcelona, 2nd edition, 1961, tome I, page 176.
5 John Stuart M ILL, Utilitarismo, Spanish translation by Esperanza
Guisán, Alianza Editorial, Madrid, 1984, chapter 5, page 132.
6 John Stuart MILL, Principios de Economía Política, edition by W. J.
Ashley, FCE, Mexico, 1943, page 835.
7 John Stuart MILL, Sobre la libertad, Spanish translation by Pablo de
Azcárate, Alianza Editorial, Madrid, 1986, page 160 and page 184.
and by the police". Although he does not come to grasp that
there exist rights with oneself, we cannot think that Mill
would have accepted the existence of violence against oneself
in the light of the excessive competition of today, of stress,
the increase in suicides, the spread of drugs, the wastage of
resources and growing desertification, and so on.
The awareness of the inalienable nature of the right to
the fundamental resources of the Earth is to be found at the
base of agricultural collectivism as defended by Henry
George in his significantly entitled book, Progress and
Poverty 8, written in 1877. George tries to grant efficiency to
the Declaration of Independence regarding the topic of the
right to happiness, the same as Mill, but through more radical
means. He affirms that "when the equality of the right to land
is denied, with the increase of population and the
development of technical inventions, political equality simply
becomes the freedom to find work with starvation wages".
Henry George's thesis on the inalienable nature of the
resources of the Earth also inspired, in our own country, the
work of Joaquín Costa, who underlined the connection
between agricultural collectivism and the thesis of patristics.
He rightfully declares: "All men, for the mere fact of being
born, bring into life a natural and inalienable right: that of
using the land with benefit, the same as breathing the air. To
deprive them of this is to rob them"9.
The limits to the disposability of resources in favor of
their conservation for future generations can be seen as the
origin of the so-called human rights of solidarity or of the
third generation. Against what is sometimes believed, we do
not think that its enunciation and defense constitutes a
superfluous task; on the contrary, such rights arise to
overcome the false disjunctive —which we referred to in our
chapter on political Modernization— between freedom and
equality, trying to see to the conditions that permit the
remaining rights. They therefore possess a much more
originating and radical nature than some of the so-called
rights of the first generation (the freedom of the moderns) or
of the second generation (the rights of equality and
promotion). In this sense, the rights of the third generation
perfectly fit in with the new paradigm of the "quality of life",
8
Henry GEORGE, Progreso y miseria. Investigación sobre la causa de
las crisis industriales y del aumento de la pobreza con el incremento de la
riqueza, Spanish translation, Mancer, Barcelona, no date available, tome
II, pages 38 and 234.
9 Joaquín COSTA, Oligarquía y caciquismo, edition by Rafael Pérez de
la Dehesa, Alianza Editorial, Madrid, 1967, page 51 and page 199.
proper of genuine postmodernity. As Diego Uribe Vargas10
recalls, this set of rights had not been the object of
international declarations, as opposed to what had happened
to the two first sets in 1966, but they have been analyzed in
the Hammer Conferences since 1978 in collaboration with the
Fondation Internationale des Droits de L'homme.
What is now central is no longer the struggle against the
repression of the State, nor even solely against the
exploitation of the market, but rather the fight against the
alienation of the individual. The inalienable constitutes the
nerve center to be protected. Unity between rights and duties
and the critique of voluntarism appear in the forefront when it
is a matter of defending:
a) The right to a clean environment.
b) The right to respect towards the common
patrimony of humanity.
c) The right to development.
d) The right to peace.
Peace and ecology are impossible to be conceived from
the centrally dominating position, from the primacy of the
power of disposition. Neither can be considered in any
manner whatsoever as subjective rights, but rather they have
to be considered as moral rights, as rights-duties. What has
priority is responsible usage, and not unlimited availability.
The ambit of inalienable rights is therefore the ambit of
res communes, of commonly held goods, of goods that
everybody has the right to use, but nobody has the right to
abuse. It is therefore the ambit of resources, which is directly
linked, as we have seen, to the ecological dimension,
introducing an important nuance in the understanding of
rights.
The other sphere in which we can see the requirement
of the recognition of inalienable rights in the strong sense of
the term is in the field of the "rights of personality", which in
the Roman terminology earlier quoted could correspond to
res sacrae, although in that case the expression had a more
10 Diego URIBE VARGAS, La troisième generation des droits de
l´homme, Recueil des Cours de l'Academie du Droit International, The
Hague, 1984. In fraternity as the joint realization of freedom and equality,
see Jean LACROIX, Crisis de la democracia. Crisis de la Civilización,
quoted by Ernesto VIDAL, "Fundamentos de la democracia en J. Lacroix",
in Homenaje a Sylvia Romeu, cit., pages 1021-1031.
limited meaning. Here we newly come across the need to
limit the power of patrimony and of the market and to use a
legal technique different from that of subjective rights, in so
far as in the latter case, as we have seen, what is essential is
their capacity for being at the free disposition of the subject,
and now we are dealing with something that cannot be
alienated.
Perhaps one of the first authors to point to the
awareness of the importance of this type of rights within the
crisis of modernity was Otto von Gierke (1841-1921) in his
1899 speech on "The Social Function of Private Law". His
words, in spite of the time elapsed since then, still seem quite
apropos today, as we advance towards the "economic analysis
of law": "There is no error as dangerous as the widespread
idea that the mission of private law is limited to patrimonial
law. Patrimony only exists in function of the person, and
above and beyond all legal-patrimonial relationship there is
the right to personality […]. The most elevated rights of
personality, the right to life, to physical integrity, to freedom,
to honor, are today generally expressed only timidly and not
without a dose of fiction, and they are imperfectly
protected"11.
Postmodern thinking requires, along with the overcoming of patrimonialism, the overcoming of voluntarism,
which is nothing else but its inseparable other side of the
coin. Indeed, by no longer basing law on the will and on the
capacity of disposition, children and the handicapped will be
able to gain access to rights. This was the great discovery of
the German jurist Rudolph von Jhering (1819-1892), which
has been delved upon by the main present-day defenders of
"moral rights" in the English-speaking world, among whom
Neil McCormick12 stands out. All human beings without
exception therefore possess inalienable rights in the strong
sense, with claims that can be exercised juridically although
they do not yet have a will or else have lost it.
The lack of connection between human rights and
subjective rights or the power of disposition not only has the
merit of the possibility of the universal extension of the
subject of rights, as opposed to the thesis of Modernity (from
11 Otto VON GIERKE, La función social del derecho privado, speech
delivered on April 5, 1899 to the Viennese Association of Jurisconsults,
Spanish translation by Apalategui, Madrid, 1904, page 47.
12 Neil M. MCCORMICK, "Los derechos de los niños", Spanish
translation by Mercedes Carreras and Antonio Luis Martínez Pujalde, in
A. F. D. (1988), pages 293-306. On the trajectory of the apparition of
moral rights in the English-speaking tradition, see José María ROJO,
Anuario de Derechos Humanos, Madrid, 1988.
Kant to Windscheid), but rather also it avoids the contradictions concerning the availability of the body and the licit
or non-licit nature of suicide, of which we spoke when
dealing with late modernism. In the new mode of thinking,
the exclusion of voluntarism is united to the overcoming of
the anthropological dualism between res extensa and res
cogitans. The body is not a tool or just another commodity
that can be disposed of; it is not something that I have, but
rather something that I am, as Gabriel Marcel, among others,
conscientiously pointed out throughout his work, especially in
his book Etre et avoir 13. From this it follows that we can not
speak of rights over my own body in the sense of free
disposition, but rather as a right-duty to its diligent and responsible use and care.
From the integral view of man as also being his own
body it naturally follows that the death penalty and torture,
which historically have been presented as being licit through
the appeal to the anthropological irrelevance of the body, are
monstrosities, but so are euthanasia and suicide, and much
more so abortion, since in this latter case the body that is
gotten rid of is not even the mother's but her own child's.
Deep down, the problem of abortion is intimately linked to
artificial paternity. In both cases, although in a distinct
manner, it is thought that paternity is a subjective right, something which we can dispose of positively or negatively to our
own liking. However, it is on the contrary a moral right, an
obligation to the opening up to life which excludes frivolity
or caprice. More repugnant still is the introduction in these
matters of elements of a lucrative nature. As Touvenin14 has
written, "The human body is not a thing. The individual does
not possess his or her own body as an alienable, relinquishable and divisible good susceptible of becoming the object
of commercial transactions (the sale of sperm, ovules, organs
…)".
The non-renounceable nature of rights not only corresponds to basic human needs, which forces the conservation of non-renewable resources, or to the non-disposition
of life and the body, but rather it also refers to political
freedom.
13 Gabriel MARCEL, Etre et avoir, Aubier, Paris, 1935. On Marcel, see
the work by Encarnación FERNÁNDEZ in Homenaje a Sylvia Romeu, cit.,
pages 333-344.
14 D. TOUVENIN, "La disponibilité du corps humain: corps sujet ou
corps objet?", Actes Les Cahiers d'Action Juridique, nos. 49-50 (1985). In
this same vein, see the collective reader edited by Francesco D'AGOSTINO,
Diritto e corporeità, Prospective filosofiche e profili iuridiche della
disponibilità del corpo umano, Yoca, Milan, 1984.
It is significant that within political sociology, in which
for the first time the expression "postmodern" is used to
define present-day society, it should be affirmed that political
participation is the only way out of the crisis of the present
day: "The active society —writes Amitai Etzioni in 1968, in a
book bearing this same title— has on its mantelpiece the
following Greek saying: an idiot is a man entirely dedicated
to his own private affairs"15.
Deep down, the passage from subjective rights to
inalienable rights within the legal framework has its correlated movement in the passage from economics to politics
which is proposed in our day by authors such as
Hirschmann16, Henderson, MacPherson or Elías Díaz. If
methodological individualism is to be rejected in the juridical
sphere due to its being unilateral and reducing, then it must
also be rejected in politics.
In MacPherson, both requirements are jointly presented.
In his 1973 book, Democratic Theory 17, he considers,
following in Jefferson's footsteps, that "participatory
democracy" —which he correctly presents as being postliberal and not mercantile— must be based on two basic
conditions:
a) The inalienable nature of the common property of
fundamental resources, which would reduce economic
disparities and with this oligopolies and partitocracies.
b) A change of mentality in people away from consumerism towards that of persons who exercise their
own capacities, since —as he himself states— "to consume is an individualistic act, whereas to develop one's
own capacities requires a relationship with others, a
sense of community".
15
Amitai ETZIONI, La sociedad activa, Spanish translation by Eloy
Fuente Herrero, Aguilar, Madrid, 1980, page 11. The priority in the usage
of the term "postmodernity" in political sociology has been stressed by
Michel KOHLER in his article "Postmodernismus", cit. in Amerika Studien,
page 12.
16 Hirschmann is perhaps the present-day economist who has shown
the greatest vigor and valor in his opposition to the pretensions of his
colleagues of reducing the world to the mos oeconomicus, while
defending, on the contrary, the submission of economics to politics.
Among his important works we can mention De la economía a la política
y más allá, Spanish translation by Eduardo Suárez, FCE, Mexico, 1984.
17 Crawford B. MACPHERSON, Democratic Theory. Essays in
Retrieval, Oxford, 1973. On his part, Elías DÍAZ underlines the possibility
of overcoming capitalism through democracy: "The ethics of legitimation
can —in my opinion— end up by decisively transforming the capitalistic
logic of accumulation", ("La justificación de la democracia, Sistema, no.
65 [1985], page 22).
The reappraisal of politics supposes overcoming the
privatizing economicism of technocratic Modernization. As
Hans Jonas has pointed out in his controversial book Das
Prinzip Verantwortung 18, "the scope of human power has
today become so great that it is necessary to be aware of the
global consequences accumulated by human action, within
responsibility for nature in its whole. It is from here that it
turns out that Goethe's principle,
¨Mind that your own affairs are well done, and
all other things will turn out all right¨,
still belongs to the hegemony of liberalism and is no longer
correct".
It is not a matter, with this, of taking importance away
from private action, but rather —as we have said when
speaking of non-violence and neo-feminism— of establishing
a continuum between both spheres, of transposing the modes
of privacy to the public ambit: the importance of caring, of
listening, as opposed to just seeing and counting19. Attention
granted to the quality of life requires the maintenance of good
manners in both the private sphere and the public ambit, so
that the former does not degenerate into a mere gutter and the
latter does not become reduced to simple hypocrisy, pure appearances20. For this it is especially necessary to put an end to
indifference, which —as Simmel and Benjamin21 had
grasped— is a consequence of granting primacy to seeing
over and above hearing, of speaking instead of listening: "The
person who is capable of seeing but is incapable of hearing is
much more indifferent than the person who is able to hear but
who is not able to see. This is something characteristic of the
big city". From this stems the opportunity of the ecological
motto, "local action", since in this dimension it is easier to
control the effects produced by political actions and to fight
against indifference. This local action linked to integral
thought explains Hölderin's profound sentence: "He who
18
Hans JONAS, Das Prinzip Verantwortung, cit.
On the importance of care, see, among others, Gilligan, Elsthain,
Jankelovich, quoted by Helen BÉJAR, El ámbito de lo privado, Alianza
Editorial, Madrid, 1988.
20 On both these dangers —from his peculiar perspective— see Erwin
GOFFMANN, La presentación de la persona en la vida cotidiana, cit.,
pages 33 and 118. On the history of good manners, see Norbert ELÍAS,
Proceso de la civilización, FCE, Mexico, 1988.
21 Quoted by David FRISBY, "Georg Simmel, primer sociólogo de la
Modernidad", in Modernidad y Postmodernidad, edition by Josep Picó,
cit., page 65.
19
thinks of the deepest things, loves that which is more fully
lived"22.
The new appraisal of politics also means the overcoming of elitism, so dear to technocrats, and which the poststructuralists strengthened by considering politics as a pure
spectacle for the masses based on cheating and manipulation,
whereas the conscious minorities had to solely enjoy art.
Against this elitism which fosters depolitization and the
return of Fascisms of different kinds, the new postmodern
paradigm demands the replacement of the false disjunctive
between art (elite, governing minority) and politics (the
masses, the manipulated majority) by a transparent art that is
committed with justice and with popular promotion, as poets
such as Walt Whitman23, Antonio Machado or Federico
García Lorca pointed out in their day.
The growing concern for politics by means of public
transparence and control could lead to safeguarding, at the
same time, equality in the access to politics and the
possibility of dissent, the Jeffersonian dream that has to a
large degree yet to be experienced at the present moment.
This will require, on the part of everybody, especially on the
part of the most favored, the abandonment of the unique
design from the Belvedere of power, and greater attention
given to the "cries of silence" of those who are not able to
speak because in some way or another they are not being
allowed to live.
22 On the overcoming of the great division between minorities-masses,
see Andreas HUYSSEN, After the Great Divide: Modernism, Mass Culture,
Postmodernism, Indiana University Press, 1987.
23 From Walt Whitman, see Hojas de hierba, Spanish translation by
Jorge Luis Borges, Lumen, Barcelona, 1972, page 84. On the political
significance of Whitman, see Carl J. FRIEDRICH, La democracia como
forma política, cit., page 165 footnote.